Direct discrimination is where an employer, service provider or education provider etc. treats a person less favourably because of a protected characteristic, compared to another person in similar circumstances. The definition for direct discrimination is broad enough to include instances where the less favourable treatment is because of the victim’s association with someone who has a protected characteristic or because the victim is thought to have it.
It is not possible for us to include every conceivable scenario here. If you feel that you have been treated unfairly then you should contact the EASS for support and advice on what your options are.
What is less favourable treatment?
Less favourable treatment could be described as treatment which causes a detriment or a disadvantage to a person, when compared to another person. Examples of less favourable treatment could be dismissal, disciplinary action, refusal of service or being expelled etc. However less obvious treatment such as discouraging an employee, treating others preferentially or segregating staff could also be covered.
Was the reason for the less favourable treatment because of a protected characteristic?
The key element in direct discrimination claims is establishing the reason for the less favourable treatment. The Courts and Tribunals adopt a common sense approach, namely asking what was the “real and efficient cause” of the treatment complained of. In some circumstances it will be clear that the reason for the treatment was because of a protected characteristic. However in other instances it is necessary to look at and examine in more detail why the employer, service providers, education provider etc. treated the person less favourably. It is not necessary to prove that an employer, service providers, education provider etc. intended to, or had the motive to (whether conscious or subconscious), treat a person less favourably because of a protected characteristic in order to show direct discrimination.
Additionally the protected characteristic need not be the only reason for the treatment; but the protected characteristic will need to be proved as being a substantive (meaning more than trivial) reason for the treatment.
It is also important to note that unreasonable or poor treatment must be distinguished from less favourable treatment because of a protected characteristic. Just because a person has not been treated fairly or reasonably is not necessarily proof of discrimination.
Similarly a difference in treatment between two people with different protected characteristics is not, on its own, enough to prove that the less favourable treatment complained of was because of a protected characteristic.
Who is the comparator for the less favourable treatment?
It is often the case that a person who has been treated less favourably will have to identify a comparator to help show that they have been directly discriminated against. The comparator can be a real or hypothetical person. The key element to establishing the comparator for the less favourable treatment is that the circumstances in which the less favourable treatment arose must not be materially different.
The purpose of identifying a comparator in direct discrimination claims is to help prove that the less favourable treatment was because of a protected characteristic. If a person has been treated less favourably than someone else, in the same or similar circumstances, and that person does not share their protected characteristic then the reason for the treatment points to being because of a protected characteristic.
Therefore the reason(s) for the less favourable treatment is of vital importance. The relevant circumstances and attributes of a comparator should as far as possible reflect the circumstances and attributes relevant to the reason for the treatment of the person alleging direct discrimination.
Examples:
- If an employer recruits a man rather than a woman because she assumes that women do not have the strength to do the job, this would be direct sex discrimination.
- If a Muslim shopkeeper refuses to serve a Muslim woman because she is married to a Christian, this would be direct religious or belief-related discrimination on the basis of her association with her husband.
- If an employer rejects a job application form from a white man who he wrongly thinks is black, because the applicant has an African-sounding name, this would constitute direct race discrimination based on the employer’s mistaken perception.
- If an employer advertising a vacancy makes it clear in the advert that Roma need not apply, this would amount to direct race discrimination against a Roma who might reasonably have considered applying for the job but was deterred from doing so because of the advertisement.
- If the manager of a nightclub is disciplined for refusing to carry out an instruction to exclude older customers from the club, this would be direct age discrimination against the manager unless the instruction could be justified.
Direct Discrimination by Association and Perception
Association
Associative discrimination is where a person is treated less favourably because of their association with a person with a protected characteristic. The most well-known example of associative discrimination involved an employee who was dismissed because they kept having time off work to look after their disabled child.
Examples: A lone father caring for a disabled son has to take time off work whenever his son is sick or has medical appointments. The employer appears to resent the fact that the worker needs to care for his son and eventually dismisses him. The dismissal may amount to direct disability discrimination against the worker by association with his son. A manager treats a worker (who is heterosexual) less favourably because she has been seen out with a person who is gay. This could be direct sexual orientation discrimination against the worker because of her association with this person.
Perception
Discrimination by perception is where a person is treated less favourably because of a characteristic the individual is wrongly believed to have. This could include being wrongly deemed to be gay or lesbian or being wrongly believed to be of a particular faith.
Examples: An employer rejects a job application from a white woman whom he wrongly thinks is black, because the applicant has an African sounding name. This may be direct race discrimination based on the employer's mistaken perception. A woman with a ‘husky’ voice calls her bank to transfer money from one account to another. She is asked to go through additional security checks by the banking advisor as he believes that she is transsexual. The banking advisor refuses to transfer the money even though the woman has successfully completed all the security checks. The woman may have a claim for direct discrimination because of perceived gender reassignment even though she is not transsexual.
Indirect discrimination is where an employer, service provider, education provider etc. applies a seemingly neutral provision, criterion or practice which puts people who share a protected characteristic at a disadvantage.
To show that indirect discrimination has occurred 4 requirements must be satisfied:-
- the employer, service provider, education provider etc. applies (or would apply) a provision, criterion or practice (PCP) equally to everyone within a relevant group (i.e. the PCP applies neutrally to everyone);
- the PCP puts (or would put) people who share a protected characteristic at a particular disadvantage when compared to people who do not have that protected characteristic (i.e. general disadvantage);
- the PCP puts (or would put) an individual with that protected characteristic at a particular disadvantage (i.e. personal disadvantage); and
- the employer, service provider, or education provider etc. cannot show that the PCP is a proportionate means of achieving a legitimate aim (i.e. objective justification)
Requirement 1: PCP Applies Neutrally to Everyone
A provision could be a condition or requirement such as a formal contractual term; it could be non-contractual policies; or it could be general rules and guidelines. Criteria could be a job specification used in recruitment or decisions made regarding promotions or bonuses; it could be factors used when deciding whether to discipline or dismiss employees.
A practice is more informal and can include all of the above where the provisions and standards are not formally laid down; it could be a one off decision or a discretionary decision; and may include decisions to do something in the future.
It is vitally important that the PCP applies (or would apply) equally to everyone within a relevant group regardless of whether or not they have the protected characteristic in question. Essentially the PCP must be neutral.
Example: A factory owner announces from month all male staff must be clean shaven. This is an example of a policy that has not yet been implemented but which can be considered as a provision, criterion or practice. The decision to introduce the policy indirectly discriminates because of religion or belief, as it puts the employer’s Sikh workers at a disadvantage. The employer must show that the provision, criterion or practice can be objectively justified.
Requirement 2: General Disadvantage
The second element of indirect discrimination requires a person to prove that a group of people who share their protected characteristic are put, or would be put, at a particular disadvantage by the PCP when compared to a group of people who do not share their protected characteristic.
Following on from the identification of the PCP it is then essential to identify all the people to whom the PCP does or could apply to. This is what is commonly known as “the pool for comparison”.
The pool of comparison should consist of all the people that the PCP affects or would affect, regardless of whether the effect is positive or negative. The pool should not be limited to only those who are disadvantaged, as this leaves no room for a proper analysis of whether the group with the protected characteristic suffers a greater disparate impact as a result of the PCP compared to the disparate impact suffered by the group who do not share the protected characteristic. Similarly the pool of comparison should not contain people who are not affected at all by the PCP.
Once the pool for comparison has been identified you can move onto establishing whether the group the person belongs to is, or would be, put at a particular disadvantage by the PCP.
This is commonly done via a statistical approach. However this is not the only approach and a tribunal may be willing to take into account common or general knowledge that people with certain protected characteristics will be at more of a disadvantage than those without that protected characteristic.
However if this approach is adopted care must be taken to ensure generally accepted knowledge or facts are not merely general assumptions that are outdated and/or based on stereotypical or prejudiced beliefs.
An approach regularly used by the Employment Tribunal is to ask the following questions:-
- what proportion of the pool has the relevant protected characteristic in question?;
- what proportion of the pool does not have the relevant protected characteristic in question?;
- how many of the people within the pool with the relevant
protected characteristic are or would be affected by the PCP?; and
how many of the people within the pool do not have the relevant protected characteristic but are or would be affected by the PCP? The answers to these questions will give you the number of people within the advantaged and disadvantaged groups that you need to compare.
If the number or proportion of people with the relevant characteristic who are, or would be, affected by the PCP is higher than or more than the number or proportion of people who do not have the relevant protected characteristic who are, or would be, affected then this element of indirect discrimination would be satisfied.
Example: A single mother of two young children is forced to resign from her job as a train driver when she cannot comply with her employers’ new shift system.
The shift pattern is a provision, criterion or practice which causes particular disadvantage to this single moither. In an indirect discrimination claim, an Employment Tribunal must carry out a comparative exercise to decide whether the shift system puts (or would put) workers who share her protected characteristic of sex at a particular disadvantage when compared with men.
The Employment tribunal decided to use as a pool for comparison all the train drivers working the same employer. There are 20 female train drivers, while 2,000 are men. It is accepted as common knowledge that men are far less likely than women to be single parents with childcare responsibilities.
- Of the 2,000 male drivers, two are unable to comply with the new shift system. This is expressed as a proportion of 0.001
- Of the 20 female train drivers, five are unable to comply with the new shift system. This is expressed as a proportion of 0.25
It is clear that a higher proportion of female drivers (0.25) than male drivers (0.001) are unable to comply with the shift system.
Taking all this into account, the Employment Tribunal decided that female train drivers in comparison to their male counterparts are pout at a particular disadvantage by the shift system. (London Underground Ltd v Edwards)
Requirement 3: Personal Disadvantage?
This requirement will be satisfied if an individual can show that they, as a person with the relevant protected characteristic, have suffered or would suffer a particular disadvantage due to the PCP.
Example: A woman cannot claim that the imposition of a new shift pattern at work is indirectly discriminatory because the PCP places women with child care responsibilities at a disadvantage if she does not have child care responsibilities).
Requirement 4: Objectively Justified
If the above three requirements can be established then the question will become whether or not the PCP can be objectively justified by the employer, service provider or education provider etc. Whether the PCP can be objectively justified will depend upon the PCP being proven to be a proportionate means of achieving a legitimate aim.
The aim of the PCP should be legal, should not be discriminatory in itself and must represent a real, objective consideration. Reasonable business needs and economic efficiency may be legitimate aims. However an employer solely aiming to reduce costs is unlikely to satisfy the test. A legitimate aim may also be derived from a statutory duty that has to be complied with.
Even if the aim is a legitimate one, the means of achieving it must be proportionate. EU law views treatment as proportionate if it is an ‘appropriate and necessary’ means of achieving the legitimate aim. But ‘necessary’ does not mean that the provision, criterion or practice is the only possible way of achieving the legitimate aim; it is sufficient that the same aim could not be achieved by less discriminatory means.
Deciding whether the means used to achieve the legitimate aim are proportionate involves a balancing exercise. A proper evaluation of the discriminatory effect of the provision, criterion or practice as against the employer’s reasons for applying it, taking into account all the relevant facts will be required.
Example: As a cost saving measure, an employer requires all staff to work a full day on a Friday, so that customer orders can all be processed on the same day. This policy puts observant Jewish workers at a particular disadvantage in the winter months by preventing them from going home early to observe the Sabbath and could amount to indirect discrimination unless it can be objectively justified. The single aim of reducing costs is not a legitimate one; the employer cannot just argue that to discriminate is cheaper than avoiding discrimination.
Harassment & Sexual harassment
Harassment is defined under the Equality Act 2010 (the Act) as unwanted conduct related to a protected characteristic that has the purpose, or effect, of either:-
- violating a person’s dignity; or
- creating an intimidating, hostile, degrading, humiliating or offensive environment
When is harassment not a relevant prohibited conduct?
Harassment is not a relevant prohibited conduct in regards to the protected characteristics of pregnancy & maternity and marriage & civil partnership, regardless of the sector.
In regards to certain specific sectors then religion or belief and sexual orientation are not relevant protected characteristics in relation to harassment in services and public function cases; premises cases; or association cases.
Gender reassignment, religion or belief and sexual orientation are also not relevant protected characteristics for the purpose of schools cases.
* In the above circumstances where you cannot argue harassment then it could be argued as direct discrimination instead. Please see the section of the website relating to the prohibited conduct of direct discrimination.
What is unwanted conduct?
Unwanted conduct covers a wide range of behaviour, including for example spoken or written words or abuse, imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks or other physical behaviour (not an exhaustive list).
When does unwanted conduct have the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment?
The unwanted conduct must have been either:-
- intended to violate dignity or create an intimidating, hostile, degrading, humiliating or offensive environment; or
- had the effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
The Act specifically lists several factors that should be considered when determining whether unwanted conduct has had the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. These factors are:-
- the perception of the person who has been subjected to unwanted conduct;
- all the other relevant circumstances of the case; and
- whether it is reasonable for the conduct to have had an effect
In regards to determining whether the unwanted conduct had the purpose of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment then the intention of the harasser is of upmost importance. The key question is whether the conduct was deliberately designed to/intended to violate dignity or create an intimidating, hostile, degrading, humiliating or offensive environment. It does not matter that it did not have the desired effect; it’s the intent that is key.
When considering whether the unwanted conduct actually had the effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment the question of whether the conduct has had the effect is an objective (not subjective) test.
Whilst the perception and feelings of the person who has been subjected to the conduct in question are taken into account the more important consideration is whether the conduct can be reasonably considered to have had the effect. This is, simply put, a test of whether the individual is perhaps being overly sensitive or overreacting.
When assessing the effect of unwanted conduct the context in which it occurred or the circumstances in which took place is always highly relevant too. Everyday experience tells us that a humorous remark between friends may have a different effect to exactly the same words spoken vindictively.
Example: In front of her male colleagues, a female mechanic is told by her supervisor that her work is below standard and that, as a woman, she will never make a competent mechanic. Her supervisor then goes on to say that she should stay at home and bring up the babies. This could amount harassment related to sex as the statement itself would be unwarranted and the mechanic could object to it before it was deemed to be unlawful harassment.
What does "related to a protected characteristic" mean?
The term “related to a protected characteristic” has a broad meaning and can even encompass situations where the person subject to the harassment does not have the protected characteristic to which the unwanted conduct relates. There are essentially 2 broad scenarios in which harassment can be deemed to be “related to a protected characteristic”. These are explained below:-
- where the unwanted conduct is related to the person’s own protected characteristic
- where there is any connection with a protected characteristic
"Any connection with a protected characteristic" , means that the person does not necessarily have to have the protected characteristic to which the unwanted conduct relates. So harassment could occur where an individual is subjected to unwanted conduct because of their association with someone who has a protected characteristic.
Harassment could also occur where an individual is wrongly perceived as having a protected characteristic or where an individual is known not to have the protected characteristic but is nevertheless subjected to unwanted conduct related to that protected characteristic.
Additionally harassment could also occur where the unwanted conduct is not directed at an individual but at another person or no person in particular but an individual takes offence.
Examples:
If a worker with a walking frame is verbally abused because of the way he walks with his frame, this could amount to harassment related to his disability. (Equality and Human Rights Commission, Code of Practice)
If during a briefing session attended by all employees, the male trainer makes a number of remarks of a sexual nature to the whole group. A female employee finds the comments offensive and humiliating to her as a woman. She would be able to make a claim for harassment, even though the remarks were not directed at her. (Equality and Human Rights Commission, Code of Practice)
Sexual Harassment
Simply put this is where the unwanted conduct is of a sexual nature. Sexual harassment will also be unlawful if, because of a person’s rejection of or submission to unwanted conduct of a sexual nature, they are treated less favourably than they would have been had they not rejected or submitted to the conduct.
Examples: A shopkeeper propositions one of his shop assistants. She rejects his advances and is then turned down for promotion which she believes she would have got if she had accepted her boss’ advances. The shop assistance would have a claim of harassment. (Equality Act 2010, Explanatory Notes)
Under the Equality Act 2010 (the Act) victimisation occurs where an employer, service provider, education provider etc. subjects a person to a detriment because they have done, or may do, ‘a protected act’.
The Act defines each of the below as being a ‘protected act’:-
- bringing proceedings under the Act;
- giving evidence or information in connection with proceedings under the Act;
- doing any other thing for the purposes of or in connection with the Act; or
- making an allegation (whether or not express) that A or another person has contravened the Act
Has a ‘protected act’ been done?
Whilst it is generally the case that the protected act is in regards to the alleged discriminatory treatment of the individual themselves, the protected act need not be in regards to a complaint that they themselves have been discriminated against. Therefore a person could be victimised if the protected act was done in relation to a third person and the alleged discriminatory treatment of that third person.
Important to note that the protected act does not necessarily need to have been done, it is enough that the employer, service provider, education provider etc. thinks the protected act has been done, or thinks a protected act will be done.
A protected act has to be done in good faith. However if say an allegation is later proved to be unfounded, factually wrong or proved to have not been discriminatory by a court or tribunal it will still be deemed a protected act. You do not have to have a provable discrimination complaint for the action to be deemed a protected act.
Has the person been subjected to a detriment because of the protected act?
The meaning of detriment is not defined in the Act but is generally seen as being anything which the person who is claiming victimisation could reasonably argue as changing their position for the worse or as putting them at some disadvantage.
The key issue is proving that the detriment suffered by the individual is because of the protected act. The reason for the detriment needs to be proved as being, at least in part, as a result of the protected act.
It does not matter how much time has elapsed between the doing of the protected act and the detrimental treatment; it simply remains the case that the individual would need to show the link between the detriment and the protected act.
Examples:
Victimisation in Services: A gay man sues a publican for discrimination on the basis that she makes persistent derogatory remarks to other customers about his sexuality. Because of this, the publican bars him from the pub altogether. This would be victimisation. (Equality and Human Rights Commission, Code of Practice)
Victimisation of pupils: The parent of a pupil complains to the school that her daughter is suffering sex discrimination by not being allowed to participate in a metalwork class. The daughter is protected from being treated less favourably by the school in any way because of this complaint. (Equality Act 2010, Explanatory Notes)
Victimisation of workers: A non-disabled worker gives evidence on behalf of a disabled colleague at en employment tribunal hearing where disability discrimination is claimed. If the non-disabled worker is subsequently refused a promotion because of that action, they would have suffered victimisation in contravention of the Act. (Equality and Human Rights Commission, Codes of Practice)
Discrimination arising from disability will be applicable where an employer, service provider, education provider etc. treats a disabled person unfavourably because of something arising in consequence of their disability; and the unfavourable treatment cannot be shown to be a proportionate means of achieving a legitimate aim.
Discrimination arising from disability is not applicable where the employer, service provider, education provider etc. did not know, and could not reasonably have been expected to know, that an individual had a disability.
What is unfavourable treatment?
Essentially unfavourable treatment is where an individual has experienced or suffered some kind of detrimental treatment/disadvantage. This could be obvious, such as a dismissal or refusal of service or suspension from school, but could also take a less overt form such as assumptions or concerns over health and safety.
The language used in the wording of this prohibited conduct, namely the switch to using “unfavourable treatment” instead of “less favourable treatment” (as it is worded with direct discrimination) is of significance as it indicates that there is no need for a comparator in cases where discrimination arising from disability is the relevant prohibited conduct.
When is unfavourable treatment because of something arising in consequence of disability?
The reason(s) for the unfavourable treatment must be proved as being “because of something that arises in consequence of their disability”. It is important to remember that this prohibited conduct is only applicable where the discriminator knows, or ought reasonably to have known, that the individual was a disabled person.
To prove discrimination arising from disability it is essential that the reason for the treatment is or was because of the something that arises in consequence of the individual’s disability.
The key element in proving discrimination arising from disability is showing that the discriminator knew (consciously or subconsciously) that the reason for the unfavourable treatment arose in connection with the disability of the disabled person and that this was a relevant factor in their decision to treat a person unfavourably.
The use of the phrase “something that arises in consequence of disability” can be taken quite literally. There just has to be some connection between the reason for the treatment and the person’s disability. That connection could include anything which is the result, effect or outcome of a disabled person’s disability. The consequences could be varied and will depend upon how a person’s disability affects them.
Objective justification
As stated previously discrimination arising from disability can be objectively justified if the employer, service provider, education provider etc. can prove that the unfavourable treatment was a proportionate means of achieving a legitimate aim.
The legitimate aim behind the unfavourable treatment should be legal, should not be discriminatory in itself and must represent a real, objective consideration. Reasonable business needs and economic efficiency may be legitimate aims. However an employer solely aiming to reduce costs is unlikely to satisfy the test. A legitimate aim may also be derived from a statutory duty that has to be complied with.
Even if the aim is a legitimate one, the means of achieving that aim must be proportionate. EU law views treatment as proportionate if it is an ‘appropriate and necessary’ means of achieving the legitimate aim. But ‘necessary’ does not mean that the provision, criterion or practice is the only possible way of achieving the legitimate aim; it is sufficient that the same aim could not be achieved by less discriminatory means.
Deciding whether the means used to achieve the legitimate aim are proportionate involves a balancing exercise. The duty to make reasonable adjustments (see the section of the website relating to this duty for further information) is also of relevance to the question of whether discrimination arising from disability can be objectively justified.
Where an employer, service provider, education provider etc. has failed to make a reasonable adjustment which would have prevented or lessened the unfavourable treatment, it may be difficult for them to show that the unfavourable treatment is objectively justified.
Examples:
- An employee with a visual impairment is dismissed because he cannot do as much work as a non-disabled colleague. If the employer sought to justify the dismissal, he would need to show that it was a proportionate means of achieving a legitimate aim. (Equality Act 2010, Explanatory Notes)
- The licensee of a pub refuses to serve a person who has cerebral palsy because she believes that he is drunk as he has slurred speech. However, the slurred speech is a consequence of his impairment. If the licensee is able to show that she did not know, and could not reasonably have been expected to know, that the customer was disabled, she has not subjected him to discrimination arising from his disability. (Equality Act 2010, Explanatory Notes)
- However, in the example above, if a reasonable person would have known that the behaviour was due to a disability, the licensee would have subjected the customer to discrimination arising from his disability, unless she could show that ejecting him was a proportionate means of achieving a legitimate aim. (Equality Act 2010, Explanatory Notes)
The duty requires employers, service providers, education providers etc. to make reasonable adjustments for disabled people who are placed at a substantial disadvantage due to their disability.
The duty is triggered if either:-
- a provision, criterion or practice (PCP); or
- a physical feature; or
- the lack of the provision of an auxiliary aid or service
places a disabled person at a substantial disadvantage when compared to a non-disabled person.
The meaning of substantial is the same as the meaning where the term is used in the definition of disability; it means more than minor or trivial. Whether a disabled person is placed at a substantial disadvantage is a question of fact and will differ from case to case.
It is important to not overlook the need to identify a comparator in reasonable adjustment cases. Case law suggests that the comparison in reasonable adjustment cases should be made with a non-disabled person in the same, or similar, circumstances. The purpose of establishing a comparator is to establish that it is in fact because of a disability that a disabled person is disadvantaged; and not because of some other non-disability related reason.
Provision, Criterion or Practice
The definition of what amounts to a PCP should generally be given a broad meaning. A provision could be a condition or requirement such as a formal contractual term; it could be non-contractual policies; or it could be general rules and guidelines.
Criterion could be a job specification used in recruitment or decisions made regarding promotions or bonuses; it could be factors used when deciding whether to discipline or dismiss employees. Essentially it is a standard that is applied to everyone in question.
A practice is more informal and can include all of the above where the provisions and standards are not formally laid down; it could be a one off decision; or a discretionary decision; and may include decisions to do something in the future.
Example: An employer has a policy that designated car parking spaces are only offered to senior managers. A worker who is not a manager, but has mobility impairment and needs to park very close to the office, is given a designated car parking space. This is likely to be a reasonable adjustment to the employer’s car parking policy.
Auxiliary Aid or Service
The meaning of an auxiliary aid is something which provides support or assistance to a disabled person and could for example be an adapted keyboard, some form of voice recognition software to aid computer use or a hearing loop in a shop. The meaning of an auxiliary aid includes auxiliary services. An auxiliary service for example could be a sign language interpreter or a support worker.
Example: A person with both learning disabilities and mobility impairments needs to move to a more accessible property. The local authority choice-based letting scheme advertises property in a weekly paper as available to people with different categories of assessed need. The properties are allocated on a first come, first served basis. The local authority agrees with the disabled person that it will allocate a staff member to provide the necessary assistance to enable him to have equal access to housing choice. This is likely to be a reasonable step for the local authority to have to take. (Equality and Human Rights Commission, Code of Practice)
Physical Feature
The meaning of a physical feature is actually defined in the Equality Act 2010 (the Act) as follows:-
- a feature arising from the design or construction of a building;
- a feature of an approach to , exit from or access to a building;
- a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises; or
- any other physical element or quality
The duty to make a reasonable adjustment in relation to physical features requires the taking of such steps as it is reasonable to take to:-
- remove the physical feature;
- alter the physical feature; or
- provide a reasonable means of avoiding the physical feature
Physical features will include steps, stairways, kerbs, exterior surfaces and paving, parking areas, building entrances and exits (including emergency escape routes), internal and external doors, gates, toilets and washing facilities, lighting and ventilation, lifts and escalators, floor coverings, signs, furniture and temporary or moveable items. This is not an exhaustive list.
Example: Clear glass doors at the end of a corridor is a workplace presents a hazard for a visually impaired worker. This is a substantial disadvantage caused by the physical features if the workplace.
Is it reasonable for the adjustment to be made?
The duty to make adjustments requires employers, service providers, education providers etc. to take such steps as it is reasonable to have to take, in all the circumstances of the case, to avoid the substantial disadvantage.
It is important to note that it is not possible to objectively justify a failure to make a reasonable adjustment. In reasonable adjustment cases the question of whether an employer, service provider, education provider etc. has acted unlawfully comes down to whether or not it was reasonable to make an adjustment. If it wasn’t reasonable then there has been no discrimination. if it was then there has been a breach of the Act.
The key issue therefore is whether it is reasonable to make the adjustment or not and an analysis of the reasonableness of a particular adjustment requires the consideration of a multitude of factors, such as:-
- whether taking any particular steps would be effective in preventing the substantial disadvantage;
- the practicability of the step;
- the financial and other costs of making the adjustment;
- the extent of any disruption caused;
- the extent of the employer’s, service provider’s, education provider’s etc. financial or other resources;
- the availability to the employer, service provider, education provider etc. of financial or other assistance to help make the adjustment
- the type and size of the employer, service provider, education provider etc.
It should be noted however that employers, service providers, education providers etc. are not entitled to require a disabled person to pay to any extent their cost of complying with the duty.
Example: Customers in a busy Post Office are served at a counter after queuing in line. A disabled customer wishes to purchase a vehicle tax disc. He is unable to queue as standing for a few minutes causes him extensive pain. The queuing policy at the Post Office places the disabled customer at a substantial disadvantage. Consideration would have to be given to how the queuing policy could be adjusted so as to accommodate the requirements of disabled customers.
Depending upon the size of the Post Office, staff could ask the customer to rake a sear and then serve him in the same way as if he had queued. Alternatively, it might provide a separate service desk with seating for disabled customers.
Sector specific factors relevant to the duty to make reasonable adjustments in services
The duty to make reasonable adjustments in services cases is an anticipatory duty. The duty is owed to disabled people generally and service providers should as far as possible anticipate the needs of disabled customers.
In service cases the key principle behind the duty, especially in regards to cases where it is the physical features of the service that are placing a disabled person at a substantial disadvantage, is to provide access to the service as close as it is reasonably possible to get to the standard normally offered to the public at large.
However a service provider would not be required to make a reasonable adjustment that would fundamentally alter:-
- the nature of the service; or
- the nature of the service providers trade or profession.
In regards to transport services, such as travel on buses, trains etc. then there is no duty to make a reasonable adjustment in regards to the following:-
- the alteration or removal of a physical feature of a vehicle used in providing the service;
- anything that affects whether vehicles are provided;
- anything that affects what vehicles are provided;
- anything that affects what happens in the vehicle whilst someone is travelling in it
(Although the above factors have no relevance to whether or not a reasonable alternative method of providing the service should be adopted by a transport service provider).
Public Functions
The duty to make reasonable adjustments in cases concerning the exercising of a public function is an anticipatory duty. The duty is owed to disabled people generally and as far as possible the needs of disabled people should be anticipated.
In public function cases the term substantial disadvantage has a different meaning to more than minor or trivial. When considering whether or not a disabled person is substantially disadvantaged in the exercising of a public function because of a PCP, physical feature or the lack of an auxiliary aid or service then substantial disadvantage is taken as meaning:-
- being placed at a substantial disadvantage in relation to the conferment of a benefit, where the exercising of the public function consists of the conferment of a benefit; or
- suffering an unreasonably adverse experience when being subjected to a detriment, if a person is or may be subjected to a detriment in the exercising of a public function
Premises
There is no duty upon a controller of premises to make reasonable adjustments to the physical features of premises, which also includes the common or communal areas of the premises. However, whilst a controller of premises does not have to remove or avoid the physical features of the premises, in circumstances whereby the terms of the letting prohibit a tenant from making such adjustments it would be deemed reasonable for the controller of premises to amend the terms of the letting to allow a tenant to make physical alterations themselves and at their own expense.
Additionally, and dependent upon the type and nature of the tenancy, both the Act and housing law contain provisions meaning that a controller of premises cannot unreasonably withhold their consent to allow a tenant to make a physical alteration to the premises at their own cost.
Work
Under the work provisions of the Equality Act 2010 the duty to make reasonable adjustments does not apply if it is not known, and could not reasonably be expected to be known that the person in question has a disability.
There are a number of ways in which an employer can make reasonable adjustment in order to incorporate a disabled worker into the work place; for example, making adjustments to premises. This may include widening doorways or moving furniture in order to accommodate a wheelchair user.
Example: An adviser with a visual impairment is sometimes required to make home visits to clients. The employer employs a support worker to assist her on these visits.
Education
The responsible body of a school is not required to make a reasonable adjustment to the physical features of its premises.
The governing body of a further and higher educational institution and general qualifications bodies are not under a duty to make a reasonable adjustment to a PCP, where the PCP amounts to a competence standard. A competence standard is defined in the Act as being an academic, medical or other standard applied for the purpose of determining whether or not a person has a particular level of competence or ability.
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